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OSTP on the Defensive in Broader Fight over Climate Documents

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Publication date:

12 August 2016

Number:

98

In two recent rulings against the White House Office of Science and Technology Policy, federal judges have expanded the reach of critics of the mainstream scientific consensus on climate change into government records.

Federal courts have recently issued two rulings against the White House Office of Science and Technology Policy, treading new ground in a long-running legal war over access to the working documentation of publicly funded scientists and science-related institutions. The plaintiff in both cases is the Competitive Enterprise Institute (CEI), an organization that challenges many government environmental regulations and the mainstream scientific consensus on climate change. Proceedings in both cases are ongoing.

Appeals court obligates OSTP to search non-government emails

On July 5, the United States Court of Appeals for the District of Columbia Circuit ruled that OSTP is obligated to search a non-government email account to comply with a Freedom of Information Act (FOIA) request that CEI originally made in October 2013. The FOIA request seeks “copies of all policy/OSTP-related email” sent to or from an account that OSTP Director John Holdren retains at the Woods Hole Research Center, his previous employer. After OSTP denied the request in February 2014, explaining that it had no authority to search the account, CEI filed suit in the United States District Court for the District of Columbia that May.

OSTP responded by motioning to dismiss the case, and the court granted the motion in 2015. CEI then appealed that decision, leading to the current ruling. In his opinion in the case, Senior Circuit Judge David Sentelle explained,

Because we agree with plaintiff-appellant that an agency cannot shield its records from search or disclosure under FOIA by the expedient of storing them in a private email account controlled by the agency head, we reverse the dismissal and remand the case for further proceedings.

In the court’s view, possible circumstances exempting OSTP from searching the account—such as that the account is beyond OSTP’s reach or that OSTP has ceded authority over the records—do not apply.

District court grants CEI special access to OSTP documents

A second, separate case concerns a video that OSTP posted in January 2014 featuring Holdren and linking the frequency of polar vortex movements to climate change. OSTP refused to walk back that claim after CEI filed a “Request for Correction” under the Information Quality Act (aka, the Data Quality Act). CEI then filed a FOIA request for records relating to the video and the request. Dissatisfied with OSTP’s response, CEI filed suit in October 2014 in the D.C. District Court to obtain additional records.

No decision has been reached in the case, but on May 9 of this year, District Judge Amit Mehta granted CEI “limited discovery,” conferring to the organization additional legal powers to demand documents from OSTP relevant to the suit. This is an unusual development for a FOIA case. In his ruling, Mehta explained:

A familiar refrain in Freedom of Information Act cases is that ‘discovery is rare.’ That maxim derives from the principle that trial courts are to accord a presumption of good faith to agency affidavits that are relatively detailed and nonconclusory. … But, as it turns out, this is the rare case where discovery is warranted. … Defendant Office of Science and Technology Policy’s representations in this case about the scope and completeness of its searches [of its records] have been, to say the least, inconsistent. Those inconsistencies have created a real question in the court’s mind—sufficient to warrant limited discovery—about Defendant’s good faith in processing Plaintiff’s FOIA request.

While CEI and other organizations hostile to consensus climate science have made liberal use of FOIA mechanism for many years, they have to date had difficulty opening up the discovery mechanism.

Years of developments precede recent court decisions

The public has long had a right to access data produced by government researchers. In 1998, a provision now known as the Shelby Amendment made data from federally funded research available via the FOIA mechanism (see FYI 1999 #4). However, some organizations, CEI prominent among them, eventually began systematically using FOIA and related mechanisms to open up additional records and correspondence related to government and government-funded research.

In August 2007, CEI filed two FOIA requests with NASA requesting records relating to a correction that the agency made to its temperature data. In January 2008, CEI made a further request for records relating to NASA scientist Gavin Schmidt’s activities with the blog RealClimate.org. NASA did not comply with CEI’s requests until late 2009 and early 2010, and continued to argue that records relating to personnel were not subject to FOIA. CEI disagreed and sued NASA in May 2010 to compel the release of additional documents.

Meanwhile, in November 2009 a hacker released years of emails belonging to researchers at the Climate Research Unit (CRU) at the University of East Anglia in the United Kingdom. Critics of mainstream climate science quickly publicized purportedly damning selections from the emails. Although an independent review concluded there had been no scientific malpractice, the critics began making serial use of FOIA and equivalent state laws to obtain additional records from federal agencies and public universities. Some of these requests were honored while others led to lawsuits. (In one ongoing case, an Arizona court recently ordered the University of Arizona to turn over large numbers of emails from the accounts of two scientists employed there.)

CEI’s 2010 suit against NASA reached its conclusion in October 2013. In its decision, the D.C. District Court granted CEI access to some but not all of the NASA documents it sought. Notably, it ruled that Schmidt’s Columbia University and RealClimate.org email accounts were not subject to search since NASA did not control them. The court also ruled that CEI was not entitled to discovery since the court was unpersuaded that NASA had not been acting in good faith in its original response to the FOIA request.

Fights over records are currently widespread

CEI’s recent work to gain access to emails held on non-government servers has found some political support in Congress, where, this past March, Rep. Lamar Smith (R-TX), chairman of the House Science Committee, requested that the Department of Energy turn over a list of emails from Secretary of Energy Ernest Moniz’s university account that had been withheld in FOIA responses, as well as a list of department employees at GS-15 level or above who use private accounts. Last year, Smith also resorted to his subpoena power to demand documents related to text messages belonging to the administrator of the Environmental Protection Agency, as well as records related to the work of climate researchers at the National Oceanic and Atmospheric Administration (see FYI 2015 #141 and 2016 #58).

Opponents of contrarian climate research have also availed themselves of public records mechanisms, albeit not so aggressively as the critics of the climate consensus. Most notably, as early as December 2009, Greenpeace used state records laws to obtain information from a number of public universities concerning certain researchers’ sources of funding. In February 2015, Rep. Raúl Grijalva (D-AZ), ranking member of the House Natural Resources Committee, followed up on Greenpeace’s investigation by issuing letters to universities seeking additional records on researchers. Following criticism, Grijalva swiftly withdrew the letters, admitting his request for correspondence constituted an “overreach.”

As reported in FYI #91, some state attorneys general are currently using state fraud laws to seek records from ExxonMobil to determine whether executives there illegally fostered public doubt about climate research while privately accepting the validity of mainstream scientific analysis. Smith has, in turn, issued subpoenas to attempt to obtain records about the state investigations.

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